**1. Introduction**

The preamble to the treaty of the Organisation for the Harmonisation of Business Laws in Africa (better known by its French acronym OHADA1 points to the establishment of a new economic order based on the mutual economic benefit of cross border trade. The primary objective of this treaty was to provide a secure legal and judicial environment for business to operate in [1]. This was to be done through the elaboration and adoption of simple modern and common rules adapted to their economies, by setting up appropriate judicial procedures and by encouraging arbitration for the settlement of contractual disputes2 . This suggests that uniform laws governing trans-national trade are essential to achieving these

<sup>1</sup> The Treaty creating OHADA was signed at Port-Louis, Mauritius Island on 17 October 1993, as revised at Quebec, Canada, on 17 October 2008. The revisions became effective on 21 March 2010. As of July 7, 2010, the West African members of OHADA are Benin, Burkina Faso, Cote d'Ivoire, Guinea, Guinea-Bissau, Mali, Niger, Senegal, and Togo, and the Central African members of OHADA are Central African Republic, Chad, Cameroon, Comoros, Congo, Equatorial Guinea, and Gabon. See http://<www. ohada.org > and http://<www.ohada.com>. On February 22, 2010, the Democratic Republic of Congo's president ratified the country's adoption of the OHADA treaty.

<sup>2</sup> The rules adopted are known as Uniform Acts.

goals. To effectively carry out the piece-meal harmonisation of the business laws of member states, specifically through the elaboration of uniform laws, nine Uniform Acts have been adopted till date3 . Our interest being sale of goods contract, we shall examine the Uniform Act on General Commercial Law (UAGCL), with respect to its provisions governing sales contracts. Thus, the principal concern of this paper is to critically test the application of the UAGCL to barter-like transactions. The focus on the OHADA business law is to test its functionality in achieving its predictability of business transactions within its contracting states [2].

The rules on the conformity of goods are not only an integral part of sales law, but also an indispensable obligation by the seller by being inextricably linked to his obligation to deliver the goods. This may explain why 'goods' are the very subject matter of a sales contract, and the rules on conformity are what help define this subject matter. Forming part of the economic and legal rights of the buyer, the latter relies on and ascertains the seller's obligation to deliver the goods in conformity with the contract specifications. This right consists in the delivering of goods of right quality, quantity, description and packaging.

Consequently, any breach of this obligation would entitle the buyer to establish proof. In this regard, many buyers will base their complaints on defects of conformity of the goods, allege a breach, and invoke remedies. It is important therefore, that there be fairly clear legal rules, particularly those applied by default, that are capable of allocating risks, thereby producing legal certainty and possibly reducing litigation.

The burden of proof includes the burden of adducing the relevant evidence and the burden of persuasion. The reliance provision is, in other words, an exception to the buyer's entitlement to the goods fit for a particular purpose, and the burden of proof of the preconditions for that exception lies with the seller. Without these rules, it would often be impossible to say what it is that the seller has agreed to deliver. However, the inevitably broad nature of these rules, together with their considerable conceptual and practical significance, still makes them one of the most frequently litigated issues. All this leads to the conformity rules occupying a central place in any sales contract.

From the foregoing, the issue of the concept of conformity should be addressed with an open mind because it is dynamic and amorphous. This explains why this study will illustrate that the limits of conformity should not be guided by the distinction between physical and non-physical characteristics of the goods. Other conceptual tools for marking this boundary will be explored in consideration of other parameters irrespective of the intent of the parties as evident in their agreed contract.

With this in mind, this study seeks in the first place to take a critical look at the rules on conformity in Article 255 of the OHADA Uniform Act on General Commercial Law (UAGCL). The primary objective therefore is to make an expository study of the concept of "conformity" as the basis of the seller's duty by showing its limits in consideration to other components. It follows with a critical examination of the UAGCL's approach in allocating the burden of proof of lack of conformity of the goods to the contractual stipulations as agreed by the parties. The study also adopts a critical and analytical approach in interpreting the provisions of the Uniform Act and of foreign instruments regulating sale of goods contracts.

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<sup>4</sup> Article 30 UAGCL.

*Sales and Conformity of Goods: A Legal Discourse DOI: http://dx.doi.org/10.5772/intechopen.93035*

'Goods' form the subject-matter of contracts of sale of goods between the seller and the buyer. The Uniform does not provide any definition to 'goods' as the case

different language versions of the statute. However, from a cursory reading of the Act, a restrictive meaning could be inferred as its provisions basically apply only to

Reference can be made to the Uniform Act's Scope and General Provisions. In particular, Article 234 (a) provides that "the provisions of this shall apply to contracts of sale goods", whereas Articles 235 and 236 restrict the ambit of the Act and by implication, the ambit of 'goods'. By inference from the restrictions imposed by Article 236 UAGCL, it may be understood that the term 'goods' is fairly not extensive, indeed, virtually not all-embracing. It clearly excludes to a greater extent non-physical items, such as electricity, negotiable instruments, and company shares, which are technically 'things in action' or incorporeal movables and so are excluded by the plain words of Article 236. Similarly, items of 'intellectual property' such as copyrights, patents and trademarks are not corporeal movables and so fall outside the definition, although of course goods may exist, which embody these intellectual property rights Even though under the Uniform Act, the notion of 'goods' serves to quantify the main obligation of the seller contained in Article 250, which requires that '… the seller must deliver the 'goods' … as required by the contract and this Uniform Act',

The reason which may be advanced for dismissing intangible or immovable goods from the scope of the OHADA Uniform Act could be that even though these are assets available for trade, they can only be disposed by way of trade or security and not possibly to be transferred physically to another party. The absolute interest in such types of goods may be disposed of outright or may be made the subject of security. Since by virtue of Article 250 para. 1 UAGCL, the main duty of the seller under the contract of sale is to deliver the goods to the buyer, what matters here is the physical transferability of the goods and not necessarily the transfer of a legitimate interest in the goods. The peculiar consideration here does not lie on the identification of the type of goods but rather on the physical segregation and ownership of it. Only in this situation is segregation both possible and necessary to identify the subject of the transfer obligation of the seller under the Uniform Act.

The UAGCL does not apply to mixed contracts as the case under the CISG, under which the seller provides goods and services. Nevertheless, by inference, these can be treated as unitary contracts rather than separate sales and services contracts [3], and the UAGCL will apply to both parts. This provision further restricts the meaning of 'goods', excluding contracts 'in which the preponderant part of the obligations of the party who furnishes the goods consists in the supply of labour or other

services'. The issue of whether software is a good is once again illustrative.

In modern commerce, an important point, not yet resolved by the OHADA Uniform Act on General Commercial Law, is whether computer software may

consideration must be given to the type or nature of goods.

**3. Contracts consisting partially of services**

. Nor is it possible to deduce the meaning of the term by analysing

**2. The legal conception of goods**

**2.1 Contract of sale of goods**

moveable tangible goods.

under the CISG4

<sup>3</sup> The following Uniform Acts are already applicable in Member States: Commercial Companies and Economic Interest Groupings, Law of Securities, Simplified Recovery Procedures and Measures of Execution, Collective Proceedings for Wiping –off Debts, Arbitration Law, Accounting Law, and Law of Co-operatives Carriage of Goods by Road. Two other Uniform Acts have been enacted and adopted by the Council of Ministers but are still inapplicable, to wit; Consumer Law and Contract Law.
